Sri Annappa Shetty vs Gopal Shetty on 16 January, 2017

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Karnataka High Court

Sri Annappa Shetty vs Gopal Shetty on 16 January, 2017

Bench: Jayant Patel

                          -1-



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 16TH DAY OF JANUARY 2017

                        BEFORE

         THE HON'BLE MR.JUSTICE JAYANT PATEL

WRIT PETITION NOs.8439/2014 & 42006/2014 (GM-CPC)

BETWEEN :

1.    SRI ANNAPPA SHETTY
      S/O LATE MUKAMBU SHETTHY
      AGED ABOUT 51 YEARS,

2.    SMT N.KRIPA SHETTHY
      D/O LATE MUKAMBU SHETTHY,
      AGED ABOUT 51 YEARS,

3.    SMT N. SUDHA SHETTHY
      D/O LATE MUKAMBU SHETTHY,
      AGED ABOUT 49 YEARS,

4.    SRI N. MANJUNATH SHETTY
      D/O LATE MUKAMBU SHETTHY,
      AGED ABOUT 44 YEARS,

      ALL ARE RESIDENT OF
      KELA-NAKATTE YADIHARE
      KUNDAPURATALUK POST,
      BYNDOOR,
      UDUPI DISTRICT - 576 278.      ... PETITIONERS

(BY SRI S.V.PRAKASH, ADVOCATE)

AND :

1.    GOPAL SHETTY
      S/O LATE CHIKKAYYA SHETTY,
                          -2-



     AGED ABOUT 50 YEARS,
     R/O MANIPAL,
     UDUPI TALUK,
     POST MANIPAL,
     UDUPI DISTRICT -576 228.

2.   JAGANNATH SHETTY
     AGED ABOUT 64 YEARS,

3.   SADHASHIV SHETTY
     AGED ABOUT 61 YEARS,

4.   MANJU SHETTY
     AGED ABOUT 59 YEARS,

5.   NAGARAJ SHETTY
     AGED ABOUT 57 YEARS,

6.   SUBBANNA SHETTY
     AGED ABOUT 54 YEARS,

7.   SMT VISHALAKSHI SHEDTHI
     AGED ABOUT 51 YEARS,

8.   LAKSHMI SHEDTHI
     AGED ABOUT 49 YEARS,

     RESPONDENTS NO.2 TO 8 ARE
     RESIDENTS OF SHIROOR BETTINAMANE,
     SHIROOR VILLAGE AND POST,
     KUNDAPURA TALUK,
     UDUPI DISTRICT,
     UDUPI-576 228.

9.   SMT. MEGOON BIBI SAHIBA
     W/O KAZI ABDUL RAHIZ SAHEB,
     AGED ABOUT 54 YEARS,
     R/O MUSLIM-KERI,
     BINDOOR,
     YADTHARE VILLAGE,
                                 -3-



     KUNDAPURA TALUK,
     UDUPI DISTRICT-576 228.

10. M/S BYNDOOR VYVASAYA
    SEVA SAHAKARI BANK,
    POST BYNDOOR,
    KUNDAPUR TALUK,
    UDUPI DISTRICT- 576 228.            ... RESPONDENTS

(BY SRI A.ANANDA SHETTY, ADVOCATE FOR R1
R2 TO R10 ARE SERVED)


     THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER DATED 2.1.2014 PASSED
BY THE COURT OF THE SENIOR CIVIL JUDGE,
KUNDAPURA ON I.A. NO.15 AND 16 IN O.S. NO.14/2009
VIDE ANN-J AND ETC.,

     THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:


                             ORDER

The present petitions are directed against the order dated 2.1.2014 passed by the trial court, whereby the application of respondent No.1 to be impleaded as the legal heir of the original plaintiff is allowed.

2. I have heard Mr.S.V.Prakash, learned counsel appearing for the petitioners and Mr.A.Ananda Shetty, -4- learned counsel appearing for respondent No.1, the contesting party.

3. The contention raised on behalf of the petitioners was that the matter is at the stage of argument since the defendants have not entered the witness box and at that stage, if respondent No.1 is permitted to come on record on the basis of the Will of the original plaintiff, the petitioners will have no opportunity to meet with the aspect of legality and validity of the Will, on the basis of which respondent No.1 wants to be impleaded as party being legal heir of the original plaintiff and therefore, the learned Judge ought not to have allowed the application.

4. In my view, the contention is ill-founded because the learned Judge in the impugned order at paragraph 11 inter alia has observed as under:-

"Under such circumstances keeping open the question of proof of Will, at this stage, if applicant is brought on record it will not prejudice to other side or otherwise it will lead to multiplicity of the proceedings."

-5-

The aforesaid shows that the question of proof of Will is kept open by the trial Court and the application is considered for being impleaded as party.

5. Under the circumstances, when the question of proof of Will is kept open by the trial court in the impugned order, it is open to the petitioners to agitate the question of proof of Will, in any case, before the court further proceeds to rely upon the said Will. Under these circumstances, it cannot be said that the question of proof of Will is fore- closed. If the petitioner so desires, he may agitate the question of proof of Will, which the trial court may be required to examine in accordance with law. Under the circumstances, the trial court has rightly found that at this stage if respondent No.1 is permitted to be impleaded as the legal heir of the original plaintiff, no prejudice would be caused.

6. Under the circumstances, no case is made out for interference but with the observation that if the question of -6- proof of Will is agitated by the petitioners, the same will have to be examined by the trial court in accordance with law.

Subject to the aforesaid observations, the present petitions are dismissed.

Sd/-

JUDGE nd/-

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